Posted
by
ScuttleMonkeyon Friday May 22, 2009 @06:01PM
from the bad-business-models dept.

eldavojohn writes "We talked about Charlie Nesson of Harvard Law School before, and it may not have been known to you, but he is backing former student and Jammie Thomas' new lawyer, K.A.D. Camara. Ars is reporting that Nesson is upping the charges against the RIAA. Not only is file-sharing fair use, but the $100,000,000 the RIAA has collected through fear is due back to those wrongly accused. He's also increasing the number of fronts he's fighting. On Camara's website, he indicates that in another case, Brittany English (pro bono), they 'are asking the courts to declare that statutory damages like these — 150,000:1 — are unconstitutional and that the RIAA's campaign to extract settlements from individuals by the threat of such unconstitutional damages is itself unlawful, enjoin the RIAA's unlawful campaign, and order the RIAA to return the $100M+ that it obtained as a result of its unlawful campaign.'"

Doing this kind of work requires you invest tons of hours and probably a bit of money in expenses for which there is a high likelihood you can never recoup. Like any other investment the greater the risk the greater the rewards must be to attract anyone. Lawyers who do this sort of work are investing with time and materials that they could have been using to do work that was more likely or even certain to pay off.

Its often not something you can do on the side either. You are up against of team of lawyers with corporate backing, If you half ass it you probably don't stand a chance. How big a cut of something like this would it take for you to risk quiting your day job for? with odd that are probably quite long?

****

Now consider you are a member of the represented class you have been abused by the RIAA directly. You fought them and lost, or settled and paid up. You though you were out your 100K settlement or damages. Now someone comes along and puts the smack down on the thugs you could not defeat or did not think it was even to your interest to try and fight. They also manage to return 70% of your losses to you. I suspect most people would be great full to get 70K refunded to them of 100K they thought they'd lost forever.

I don't find the lawyer's take on these types of things all that outrageous when you look at it objectively.

Now someone comes along and puts the smack down on the thugs you could not defeat or did not think it was even to your interest to try and fight. They also manage to return 70% of your losses to you. I suspect most people would be great full to get 70K refunded to them of 100K they thought they'd lost forever.

I don't find the lawyer's take on these types of things all that outrageous when you look at it objectively.

Unless "objectively" means "like a lawyer" I still don't see how a huge injustice has not been done. ("Injustice" is the opposite of "Justice." You may need to consult a dictionary.)

All the lawyers are doing is mitigating, not eliminating, the injustice that RIAA has already done. Time for a car analogy: you get in a fender-bender and it's 100% the other guy's fault. That's injustice. Mitigating the injustice is that the other guy's insurance pays to repair your car (which does not bring it back to mint shape - the frame has been bent and put back, so it has additional stress points making the vehicle less safe in any following collision) and your hospital bills (which still means y

To become a saint you can either perform a miracle, or die for your faith as a martyr... so he could qualify either way.

The requirement to be dead that the other guy mentioned is so that all their actions can be considered before they're declared a saint. Thus avoiding the possibility of a saint doing something evil after being sainted.

Do you turn your back on NYCL so quickly just because some real-life Doogey Houser thinks he can take on an establishment that has been bought and paid for? Not only will there be high resistance from the courts, there will be heavy resistance from the DoJ and possibly even the Obama administration. These media people have a lot of favors they can call in.

"Do you turn your back on NYCL so quickly just because some real-life Doogey Houser thinks he can take on an establishment that has been bought and paid for?"

I know Charles Neeson. Comparing him to Doogey Houser indicates you don't know a thing about him. He's educated some of the finest legal minds day, off the top of my head: Larry Lessig, Jon Zittrain and Ben Edelman.

There's a reason the RIAA never moved against Harvard students. This is the one battle they didn't want and they may be assholes but they

I support the movement, but claiming that file sharing is protected under "fair use" is a horrible legal argument.

Actually the way you, and perhaps they, have expressed the issue is overly simplistic. "File sharing" is a broad term. There are many factual scenarios under its penumbra. Some of those scenarios would constitute fair use, some would not, and some would fall into a gray area to which we do not know the answer. There has been NO litigation of the "fair use" defense in the RIAA v. Individual cases, except for a single 2003 case in which the only question was whether running off unauthorized copies of unauthorized copies on a p2p file sharing network, and placing those in permanent hard copies on the defendant's computer, was a "fair use". The Court held that it was not. But there are many other possible fact patterns, none of which have presented themselves yet in a litigation context.

Meanwhile the constitutionality defense -- that the RIAA's theory of statutory damages fails to pass constitutional muster under the Due Process Clause due to the disproportionality to actual damages -- is certain to succeed, in my professional opinion, once the issue ripens.

Filesharing is partially PROVEN legal in holland. Downloading is 100% absolutly legal and judges have ruled on this multiple times.

So, it is only a horrible legal argument in countries where the law is owned by the copyright industry.

And please note, human civilization has DEPENDED on copyright "violations" for millenia. Rossetta stone anyone? Copied all over. How did you think books were made before the printing press? Hand copied over the centuries without any notion of paying the author. Modern copyrig

On Camara's website, he indicates that in another case, Brittany English (pro bono), they 'are asking the courts to declare that statutory damages like these â" 150,000:1 â" are unconstitutional

When it comes to the courts, including the Supreme Court, it seems that corporations' power compared to people are allowed to be practically infinite so long as they're not literally listed as infinite. See: extensions of copyright, corporate personhood.

Actually, last year Nesson had the opportunity to shut the copyright nonsense down and dropped the ball. He basically refused to argue the practical merits of the case, sticking only to principles. The SCOTUS was tossing him softballs to allow him to show, basically, that the argument he wanted to argue was important enough that they should decide the constitutionality of it.

What he failed to consider was that, despite granting him the hearing (which was an extreme longshot in itself), and practically beg

It's actually funny how all they are fighting for seems just like common sense. The RIAA is blackmailing all the people they can, under ridiculously claims... Man, 150000:1, who in their right mind could come up with something that stupid !!!???!!!

Man, 150000:1, who in their right mind could come up with something that stupid !!!???!!!

I can't be bothered to dig up the year they last changed those figures, but it's old like before online copying was a problem. So if you got one guy making 100 copies of a book, one liability = 150,000$. In modern day file sharing everyone makes one copy - what's the point to having more than one copy - so you have 100 guys making 1 copy, 100 liabilities = 15,000,000$. Basicly the punishment is made for a completely different situation.

I would like RIAA, AND THE LABELS THAT BACKED THEM, be made to pay all the money back along with a fine of 150000:1 on the money paid. I think that they have established the rate of what is wrong is worth. So, if somebody paid 100, they should get 15,000,000 (from the labels).

Oh dear god, kindly fuck off.
Copyright is an amoral law that concentrates power over culture into the hands of profiteering publishers.

Copyright is based on precedent, one that originally promoted original art. Once upon a time, anyone with a printing press could take someone's work and make a book. Authors were getting screwed, particularly overseas authors: American publishers were printing Dickens without paying royalties and British houses were doing likewise to Melville (one reason he died a pauper - he was vastly more popular in Britain, but never saw a cent for his books printed there). Establishing Copyright and an international treaty made it possible for artists to make a buck.
Like any law, it needs retooling, but to dismiss the concept of copyright as amoral is puerile.

"If I take your argument to the logical extreme, BMW should not expect payment for the cars it makes because no one promised to pay for them once they are made."

And that's exactly the case. BMW offers its cars on the expectancy of selling them, but if nobody effectly goes into the shop and buys them, it will eat them without asking government to pay for its stock or sueing anyone that happens to buy a different car or decide to ride a bycicle.

How are they pushing their works onto the public? Are you saying because they advertise their works they lose their right to revenue from these works.

Leaving my car running in the driveway, with the keys in the ignition is not a clever thing to do. But it also isn't an invitation to steal it.

And having a distribution model without anything to distribute is just silly. People do not consume a distribution model. They want the convenience so that they get the works they want as easily and as cost effectively

You write of the foundation of copyright yet you seem ignorant of its history. Copyrights were originally established as a form of censorship [chronicle.com]:

At its birth in England, copyright was an instrument of censorship. In 1557, Mary Tudor, the Roman Catholic queen, capped off a 120-year monarchal struggle to censor printing presses by issuing a charter to the Stationers' Company, a guild of printers. Only members of the company could legally produce books, which had been licensed by the crown.

Without copyright, the profiteering publishers just publish anything they find, and the authors get $0. It was, in fact, created for the express purpose of taking that power away from the big publishing houses.

Yes, because it's all about the publishers. No artist could possibly want to sell their work. They'd much rather pack your bags at the grocery store and then go home to make music, video games, movies and books for you in the evening because they like you so much.

Yes, because that's the only alternative. No artist could possibly make money from their work if they didn't have a government-granted license to restrict other people's speech. They'd rather give up and go work at grocery stores than adopt a sensible business model that isn't threatened by technology.

If there was no law to prevent it, Sony or WalMart would simply grab all the music they could get and put it out on a CD you could buy. For the people that (a) don't have Internet broadband and (b) people that don't know any better this would be much more convenient. They would make millions and the artists would get nothing.

They could probably out-distribute the artists with their own work. Why not? WalMart is the biggest distribution channel in the world.

They could probably out-distribute the artists with their own work. Why not? WalMart is the biggest distribution channel in the world.

Yes, why not indeed? Artists should be looking to make money from creating art, not from distribution. Leave distribution up to the distribution experts, whether those are retailers like Walmart or P2P networks like BitTorrent.

If you're a musician, don't record any songs unless someone has agreed to pay for your time spent writing/recording. Or, if you prefer, record them but don't release them until someone has paid, which is basically the Street Performer Protocol [wikipedia.org].

Would there be a fixed amount for each art item created? For each song?

That's up to you and your customers. Whether you charge by the song, by the album, by the hour, etc. is an implementation detail.

The important thing is that you and your customers agree on a fair price, so

That's just silly. If you think long and hard about what you are suggesting, you would realise that it doesn't work.

Let's say it takes a year for a musician to come up with material for a single album. To pay them to produce this, you are going to have to pay them a year's wages, plus other costs.

Now how do you decide which artist gets the money? Is it any artist who produces some work who gets the money? And how many people are really going to pay for someone to produce works which everyone else will get t

Without copyright, artist would loose money because publishers/music/movie corporations would just take it.

How, exactly?

I assume you don't think Vivendi or Sony would send goons to mug artists on their way home from the studio, but the alternative ways that publishers could "just take" money from them are even more absurd. Surely you don't believe artists would give these publishers a bunch of free material to resell, without getting anything in return, do you? That's foolish enough with copyright; without copyright, it's ridiculous.

Oh, wait, sorry, did someone forget to inform you that copyright law is more than just making money? It also entails plagiarism and similar concepts.

You know what else also "entails" plagiarism and similar concepts? Anti-fraud laws. Lying about something in order to sell it is already illegal.

You don't need copyright in order to outlaw plagiarism. Even if you find that existing anti-fraud laws aren't enough, then you can pass a new law that specifically forbids passing someone else's work off as your own, and you still won't need copyright.

Why would you need to pass it off as your own? WalMart sells stuff every day that they didn't make. So they could just as easily sell artists work without compensating them. No copyright law means there would be nothing to prevent this from happening.

Trust me, WalMart and Sony have already figured this part out and know exactly what to do should something like the elimination of copyright law. They will make more money than ever before.

Why would you need to pass it off as your own? WalMart sells stuff every day that they didn't make. So they could just as easily sell artists work without compensating them. No copyright law means there would be nothing to prevent this from happening.

Oh, really?

Where is Walmart going to get all this material to sell if artists aren't being paid to produce it? Do you think all those artists will just work for free, knowing that their work will immediately be copied and resold?

If an artist is happy working for free, then sure, the Walmarts of the world will have a chance to make money by reselling his work. And they'll deserve to make that money, because they're providing a distribution service.

Ya.. you're missing the point. He's saying that Walmart will publish and distribute only works that they can get for free.. and that without copyright that means all works.

Of course, this is easily shown to be wrong. Firstly, they can't get new works for free, because authors will not release their new works without a fee. (That's the point you made). But, more importantly, Walmart won't waste their time selling works that anyone can publish.. because competition will drive the price of the work below a

But, more importantly, Walmart won't waste their time selling works that anyone can publish.. because competition will drive the price of the work below an acceptable profit margin. So it's pretty obvious that without copyright Walmart would only sell works for which they were the first publisher.

I don't think that's true. You can already buy copies of public domain books and films. Anyone can compete in the market for published copies of Moby-Dick, for example, but that hasn't driven the price down to an unprofitable level.

Indeed, without copyright, copies would be commodities like many other products which are still profitable. Look around you: there are probably a dozen things within arm's reach that are produced by competing firms who all manage to make money at it. Naming just a few, I see CD-R

No doubt, but that small margin is still enough to make it worth publishing and distributing. Therefore, I don't think we have to worry about "works that anyone can publish" becoming unavailable.

Of course, in the absence of copyright, every work is a work that anyone can publish. Even works that Walmart commissioned could be republished by someone else the moment they hit the street; Walmart would have a very short period of exclusivity.

Indeed. The publishing world would become segregated into two types: first publishers and secondary publishers. Over time, the period between first release and secondary publishing would diminish. First publishers could only counter this by embracing technology.. I imagine they'll do personalized delivery of watermarked serialized preorders at significantly hirer cost. People who want first editions will pay that premium.

"Sure, just please explain to us how a small, unknown artist is to get a name for him or herself without any legal recourse to a bunch of assholes nicking his/her work early on, claiming it as their own, and running off with an ill-gotten reputation."

Do you really think Homer was a big known Sony-backed up artist prior to his Illiad? But somehow he did manage to become famous and respected without neither a Sony contract nor 90-year-after-death copyright laws.

No, that's quite true. If you copy my credit card information and do nothing at all with it, I don't lose anything. If on the other hand you copy my credit card information, then impersonate me and start buying things with it, then it costs me money. COSTS me money. As in, I have to pay the bills for your spending.

The only sense in which the victims of copyright infringement lose money is that they don't get money they might otherwis

The only sense in which the victims of copyright infringement lose money is that they don't get money they might otherwise have had. That's a very different thing from taking away money which they actually did have.

Right -- and it's a thing we've all come to accept already as a fact of doing business.

If I decide not to see Terminator Salvation (because I've heard it sucks), the theater and the studio are "losing" money they might otherwise have had. The reviewers who convince me not to buy a ticket are every bit as responsible for that "lost" revenue as the file sharers who give out free copies so other people don't have to buy tickets. So if the anti-P2P forces are so concerned about lost revenue, why aren't they fig

Becasue it's different when you actual partake in the service and not pay.

Different from whose perspective? Not the artists' -- they're in exactly the same situation either way.

This isn't like getting a haircut or a meal and then refusing to pay for it. If I download a song, I'm not costing the artist any more than if I decide not to listen to it at all.

It only makes a difference from my perspective, and if that's what you're railing against, well, you're going to come off just like the puritans who oppose dancing, sex, and any other harmless pleasure that isn't "earned".

Bad reviews are one thing. Competitors pounding out bad reviews are another. Legitimate bad reviews can be good - they can point out flaws in something that can be corrected. But one thing that is easy on the Internet is to get people to put in phony "reviews" that just say not to go to a restaurant or something because the food is terrible or someone got sick there.

The true power of the Internet is that it makes all reviews meaningless because phoney ones are so easy to come by. But most people don't k

OK, since you got a copy you can "share" it with me. I would have paid, but I am cheap. I would rather download it from you (or anyone else on the planet) rather than pay.

I guess if I have to pay, I might. But I don't want to. I am cheap and I know it. The Internet today is assisting me in being cheap. Low price trumps everything, which means if I can get it for free I win.

That's funny. Even in your own statement, you change from "I would have paid" to "if I have to pay, I might." You simply cannot say someone would have bought something until they actually do so. Personally, I don't listen to much music but I do enjoy movies and television shows. I have purchased thousands of DVDs (HD-DVD's and Blu-rays, too) because I enjoy them. Currently, there are hundreds of others that I would buy but I haven't and may never actually purchase them. I'll only spend within my alloted bud

But lost behind it all is the primary problem — "Thou shalt not steal". Because, if the 10 Commandments were a "living and breathing document [wikipedia.org]", the "Thou shalt not copy content without owner's permission" would've been found in it long ago.

I hate to say it but much of the legal system is rooted in The Ten Commandments. Basically The Ten Commandments were a document designed to ensure stability of a society or to put it more academically it was a social contract. If you have people running around killing, stealing, cheating/lying then you have society breaking down. And at a time 4000+ years ago when this document was first created a society that was in the process of breaking down would easily be lead to ruin and destruction.

But lost behind it all is the primary problem — "Thou shalt not steal". Because, if the 10 Commandments were a "living and breathing document [wikipedia.org]", the "Thou shalt not copy content without owner's permission" would've been found in it long ago.

But lost behind it all is the primary problem â" "Thou shalt not steal".

The primary problem is not that people are stealing, the primary problem is that people don't think they are stealing.

And the primary question is: is the problem a problem with the moral health of people, or is the problem a problem with the entertainment industry's business model?

Are people as a collective allowed to decide what is publicly transferable? I would say, yeah. That's a bummer for those who profit when copies of works are scarce in the economic sense but then again times change. And the Ten Commandments don't contain any guarantees from God about the minimum level of profitability of the music business.

Of course one should always obey the laws of the land. Except when one shouldn't. For example, civil disobedience in protest of the arbitrary and disproportionate victimization of ordinary people by powerful elites has always gotten sympathetic treatment in the history books.

On this one, I predict the history books will portray the industry as a callous group who tried to enforce their will on the populace by making people terrified of their wrath.

And the primary question is: is the problem a problem with the moral health of people, or is the problem a problem with the entertainment industry's business model?

You could probably argue the former, but like most things that take on a new and typically abstract form, there's too much pychological distance for morality to play a significant role. Financial crimes, for example, typically cause more real loss or damage to people's lives than a bank robbery, but are rarely considered as serious. That's why s

The primary problem is not that people are stealing, the primary problem is that people don't think they are stealing.

And they aren't. Copyright infringement may be a crime, but it is not the same crime as stealing. The differences are important. There are reasons why the law makes a difference between, say, armed robbery and manslaughter. See, in one case someone ends up dead, in the other just poorer. Same for theft vs. copyright infringement. In the one you are actually deprived of the posession of something, in the other it remains in your posession, but you are out of some hypothetical future profits.

Which is why I called it "hypothetical". This is one of the reasons why the difference is important - in a theft case, the damage the victim sustained is fairly straightforward (value of the stolen good). In an intellectual property case, it is much more difficult to calculate.

Interestingly, the RIAA/MPAA call it "theft" in all their non-legal publications, but they don't calculate their damages as for a theft. So much for honesty.

The ten commandments are also a little outdated. Thou shalt not covert another man's wife? Really? So I can't fap to some other guy's chick if she's married? Okay, fair call. But women can covert all the men they want? That's not exactly fair. What about gay couples? Coverting is completely okay? Lesbians, too? Interesting...

If the ten commandments and by extension the bible were, indeed, a living document a LOT more changes would come before the copywrite infringment stuff. Sorry.

Because, if the 10 Commandments were a "living and breathing document", the "Thou shalt not copy content without owner's permission" would've been found in it long ago.

Err... breathing or not, you are not seriously requesting that we base 21st century law on the ethics and morality of ca. 500 BC? Maybe you should read a little further in that little book, about how it's ok to stone homosexuals to death, or that "thou shalt not suffer a witch to live", and all the other stuff that we consider outrageous today?

Though, as a male I find it funny that it's against the 10 if I lay eyes on my neighbour's wife, but apparently not if she has a fancy for me. Dig that.

Fair use is a doctrine of copyright law that defines a small set of activities that are regulated but permitted. So yeah, what you said was true, but clearly irrelevant to the discussion. Well done.

Why do you think big names like John Carmack no longer post on Slashdot?

Heh, John doesn't post on Slashdot because there's no point. See, there was a time when posting on Slashdot was considered a productive activity (shocking I know), now it is simply "fun" or, less generously, procrastination. Some people embrace procrastination, some people feel shameful from it, some people a

Care to demonstrate how demanding >$150K per downloaded song, when songs were $1.00 at Amazon etc. and which (IIRC) not even the RIAA claims to have been subsequently shared) is unselfish, or equitable, or even only a little greedy? Downloading is not right and the artists have a right to be compensated, but I fail to see how ruining someone's life is appropriate. As for the artists who support (either actively or by their silence) the RIAA campaign against their custome

"File-sharing of copyrighted materials is not fair use." You get modded down because you are just trolling here. You are telling exactly the opposite of what this story submission is about, and its the main argument to be tested in court.

What is piracy to begin with? The abuse of this word is stupid, and legally you can only talk about copyright infringement, because there is no stealing (removing a physical object) involved in sharing copyrighted works.

Remember that Slashdot is very pro-Linux and pro-GPL, so there's an attitude of providing things for free. The thing is, the GPL relies on copyright to exist. It's actually a copyright and usage license, even though Slashdot often posts stories about how evil copyright laws and EULAs are.

The primary benefit of the GPL, according to many of us, is that it turns copyright against itself, restoring the freedoms that copyright took away in the first place.

In a world with no copyright, there wouldn't be nearly as much need for the GPL: we'd all be free to distribute software, patches, and reverse engineered source code. If you release a proprietary fork of Linux and refuse to give out the source code, that's OK, we'll just disassemble it and incorporate your changes into our open-source branch.

And, of course, there are the stories of "stolen" GPL code, even though we constantly hear that "piracy isn't theft."

Remember that Slashdot is very pro-Linux and pro-GPL, so there's an attitude of providing things for free.

Sort of. It's more an attitude of free flow of ideas is good because it drives progress. In the whirlwind of progress that is software development, I think you'll find there is less sympathy for those who want to slow everything down while they figure out a way to make money off it.

The thing is, the GPL relies on copyright to exist. It's actually a copyright and usage license, even though Slashdot oft

Any crime in the physical world can be ignored if it is done using the Internet. This is especially true if the victim is not wise in the ways of the Internet. Bragging about your conquest tends to void this rule.

A low price trumps all other considerations. Free is best.

Anything that can be represented digitally is viewed as fair game for the taking on the Internet. If it isn't available from one source for free, keep looking. Someone else has already stolen it and is sharing.

The lowest common denominator is the only way anything works on the Internet.

One bad apple spoils the barrel. One stupid or ruthless user on the Internet can screw things up for the entire world.

Security is the responsibility of the end user. If you haven't protected yourself, it is your own fault. The entire world is out there looking for vulnerabilities in your computer and it is their right to do so. See item 1 if you have any questions.

Attempting to invoke the rule of law on the Internet is at best a joke. It shows your imcompetence. There are no laws and no rules.

I think it can be best summed up as "I want." Yes, I want to download movies and music for free. Anything that gets in the way of that is obviously oppressive and damages my fragile psyche. There should be laws against things like that.

Umm, sorry, no. There needs to be a balance between free and what generates income - somewhere someone has to support a living. If he/she/it is a success I'm OK with that generating lots of dosh too.

However, this is not a debate over free vs fee, this is about fee vs theft. The whole problem with theft is that it allows the overcharger to claim that it's theft that is ruining their business instead of forcing them to admit their approach is no longer valid as a business model. In other words, the belief